CONSERVATION COMMISSION
Town of Monterey, Massachusetts
MEETING DATE: April 13, 2009
Present: Richard Andrus, Timothy Lovett, Judy Bach, David Dempsey and Christopher Blair
The meeting convened at 6:10p.m.
Rick Andrus, Chair, gave a brief agenda summary before officially hearing any new or continued hearings.
The Commission held a hearing to adopt the rules Under MGL Ch 44 Section 53G and Ch 46 Section 36 of the Acts of 2003, and other amendments, allowing the Monterey Conservation Commission to hire outside consultants and request and accept funds from Applicants before the board to review submitted materials and assist the Monterey Conservation Commission in its regular business. A motion was made to accept the regulations as written. The motion was seconded and approved unanimously. There were no questions from the public. Copies of the regulations are available at the town hall and on the town website: www.montereyma.gov on the Conservation Commission department homepage.
Erlich – 26 Northwest Cove Rd RDA to seasonally install and maintain two docks, one floating and one suspended plus a canopy which will all be removed in the winter months (enforcement order sent previously) (D. Dempsey is the project manager)
Dennis Downing, attorney for the Erlich’s reviewed the project since this meeting has been continued several times over the last few months. The Erlich’s own 2 separate abutting lots and are looking to build 2 docks. The Commission has a policy of one dock per lot and it’s limited to 300 or less of square footage. A revised plan was submitted that has the 2 docks but one on each lot. The Commission determined that the Enforcement Order conditions have been met (filing an RDA and a Chapter 91 application). The Commission stated that if the docks were going to be on separate lots now that separate RDA’s and Chapter 91 applications will need to be filed. The existing RDA submitted will be amended by the owner and a new RDA will be filed for the other lot/dock.
Rick will contact J. Mew at DEP to let him know the Commission agreed to this.
Bach – SMA NOI – SMA09-01 Mt Hunger Rd.- to create a subdivision roadway for a future division of a +/- 26 acre existing residential parcel into four lots and RDA – Mt. Hunger Rd. - to create a subdivision roadway for a future division of a +/- 26 acre existing residential parcel into four lots (D. Dempsey is the project manager)
Judy Bach recused herself from the hearing. Rob Ackroyd from Greylock was present to review the revised plans submitted. The revised plans show a reduced leaching field in a new location that eliminates any resource area disturbance. There will be some clearing in a Scenic Mountain Act area. The Commission questioned why all the information brought with Mr. Ackroyd was being provided to the Commission when they were only reviewing the project for a road to be installed for the newly created subdivision. Mr. Ackroyd stated it’s being provided to show the Commission and that their narratives still express that this application is only for a determination on the creation of “Green Way”. The WPA DA was approved as submitted as an N3 with the condition that a maintenance
plan be submitted for the roadway and structures. The Commission did not make any determinations on the Scenic Mountain Act application and will be seeking comments/guidance from Town Counsel on questions they have with regards to the SMA and subdivision bylaws. The applicant meets again with the Planning Board on May 15th regarding the subdivision.
Wasserman – NOI 230-0251 – 40 Elephant Rock Rd – to reconfigure an existing seasonal dock and replace the wooden steps to the dock (T. Lovett is the project manager)
Shannon Boomsma of White Engineering was present to review the project with the Commission. The applicant has submitted a revised plan. The revised plans submitted were approved and an Order of Conditions will be issued.
Levkoff – 26 Eaton Rd – WPA & SMA Enforcement Order; continued from March Meeting (D. Dempsey is the project manager)
Present: Tim Lovett recused himself from the meeting, Sid Smithers, Attorney for the Levkoff’s, Steven Levkoff, Walt Cudnohufsky, Pam Sandler, Carl Audia, Chuck Schnell, Elizabeth Goodman, Attorney for Mr. Hack and other town residents, Emily Stockman Wetland and Soil Scientist retained by Mr. Hack,
The Commission explained how they decided on a consultant (New England Environmental) and provided the Levkoff’s with the estimate. A check was provided by Mr. Levkoff. Sid Smither’s presented the details of their restoration plan submitted. The supplemental conditions issued by the Con Comm at their March meeting have been filed with the Registry of Deeds. The applicant hopes that the Commission will schedule an interim meeting to amend the current Orders of Conditions before their next May meeting.
Google Earth photographs of the property from 2005 were provided because the applicant states that the before and after pictures printed in the Berkshire Record article were wildly inaccurate. They do acknowledge that there was cutting that took place in February but it was not of 100ft trees as shown in the picture in the paper. The Commission noted that it was not virgin timber that was cut but understood the need for the clarification. The Commission also wanted it noted that they did not supply any of those photos to the paper.
Walter Cudnohufsky and his associate Chuck Schnell gave a brief summary of their involvement with this project and its restoration. Ortho photos from Google maps were shown. D. Dempsey commented that it was safe to assume that these photos are usually shot in the fall when there isn’t any foliage so you aren’t seeing the entire picture. It was also noted for the record that the first illegal cut happened in 1985. The types of trees the applicant proposes to replant under their restoration plan and their growth, foliage and coverage expectancies were reviewed. Their restoration plans suggest that they need to continue with the original plan under strong guidance, the trees should be planted and parts of the shrub cover should be nurtured. They have no intentions of going back
to 100% coverage, 60/40 is what they are aiming for. Getting trees down this slop is going to be a real challenge.
The Commission questioned why there weren’t any hemlocks in the proposal. Chuck stated that currently hemlocks are under attack by disease and part of the overall restoration plan is to protect some of the ground cover. They are protecting the slop by encouraging the lower growth. The remaining trees are mostly birch. The Commission asked why there weren’t more proposed plantings higher up on the slop where cutting was done to make up for the trees that shouldn’t have been cut it was stated that the steeper the slope the harder to get a tree to survive.
At this point the meeting was opened up to public comments. Elizabeth Goodman, Attorney for Mr. Hack and other town residents stated that she agreed with the Levkoff’s consultants that the utmost concern here is the environmental impact but she feels that the consultants have utterly failed to address that. She stated that this was not a “blip” as was referenced but yet an outright violation which was done for a purpose. She urges the Commission to take careful consideration of the following issues:
1. There is a reason that enforcement orders are tied to a penalty. What is done here by the Commission with this violation sets a precedent. She stated that there are monetary penalties or the Order of Conditions can be voided or they could delay or refuse the work to go forward as permitted (she later clarified that the restoration should continue but selective thinning, putting in a path and dock should not be allowed to continue at this time). She felt that the public concern really needs to be taken into consideration.
2. She asked that the goal of this restoration be identified.
3. She felt there needed to be much more specificity about what was cut and what will be replaced; she felt this could be done by requiring a map of all the stumps that were cut, ask for additional information about the type and depth of soil and type of planting and they could ask for maps of projected canopy over time depending on the planting.
4. She felt there is a lot more that could be identified on paper to protect the resource area.
She thought that the National Heritage hadn’t been informed (note: they were cc’d on all of the packets sent).
Emily Stockman, Wetland and Soil Scientist retained by Mr. Hack to review the restoration plan submitted. She stated that Walt has brought forth a lot of nice details with regards to the goals of the restoration which were missing from the narrative. She felt that it was important to always have these items in writing. She has a number of comments and did not that she has not been able to make a site visit:
1. During the NOI process it was brought up that this in a National Heritage area. She felt that the Commission could ask for clarity on what those species are that are located there. Chris stated that they are in the loop and have been notified throughout.
2. She has a number of concerns about the lack of soil information.
3. She said there had been some mention in the notes about having a landscape monitor or an engineer monitor during the planting. She stated that the Commission is allowed to request that an environmental monitor be present and they can request that the resume be submitted to them prior to approval. Typically with this type of monitoring the Commission is provided with monitoring reports.
4. She stated that there seems to be a tendency to talk about steep slopes and the potential for erosion but then she has seen any silt fence or erosion controls being proposed close to the BVW and bank boundary. She stated that if a terrace planting is approved there should be consideration given to the stability and particles that could move.
5. She thought it would be helpful if there was a clear objective to this project. Is the omission looking for an in kind restoration or a modification of the existing Order of Conditions that had already been approved?
6. She has a concern over the index of recorded stumps. The index tallied 22 stumps but only 15-16 are being proposed in the replanting. Mike Kulig clarified and answered Emily’s questions regarding this item. She recommended that the Commission and their consultant get to the site and verify the stump tally. She was allowed to walk the property just before this meeting and noted that there are significantly more stumps than noted.
7. There were also concerns about the suggested slope planting detail. She feels that the Commission could request a clear definition of what a tree is, what is a sapling and what is a shrub. She stated that there are different definitions between the WPA, landscapers and such.
8. Since there is a lot of slope to deal with and there’s a 1:1 slope, she did not feel that any of the remedies suggested (mostly different types of walls) would reflect this kind of restoration.
Emily stated that she’s happy to address anything on her narrative report provided and she requested the opportunity to review any materials that come from New England Environmental or from Mr. Levkoff’s consultants.
Chris Blair explained the process of amending of an Order of Conditions as he understands it from his discussions with the DEP. He stated that revoking the OOC is very simple; you go back to square one and start over. Modifying and amending the OOC for administrative issues is very simple. Taking an existing OOC that was issued and recorded and modifying it in the future may subject you to legal poking from the Superior Court and in Superior Court changing what’s already been done may not be viewed by a judge as a good thing or beneficial to you. The Commission is leery to modify what already exists and rather be very strict about following the replanting plan that is approved by the Commission.
An idea was suggested to prevent future cuttings like this that all tree cutters must be licensed and approved by the town. D. Dempsey stated that the Commission has done their job throughout this process; the ball was dropped by the applicant/applicant’s representatives who performed the clearing without following the conditions set forth in the Order of Conditions which included a site visit 72 hours prior to any cutting being done.
Walter was asked to define sapling, he stated he means trees up to 5 inches when he states sapling. Walter stated that as a consultant to the Levkoffs, he was never instructed to clear cut but was instructed to create some views to the water within the regulations.
The Commission stated their concerns and reasons for their hesitancy to approve the beach area going forward. Chris noted that he hasn’t heard any plan about how they are going to manage the people that will be cutting. Pam Sandler stated that Carl Audia will be managing the guys with the saws. Someone suggested that the applicant should have to provide the name of an Environmental Engineer that will be monitoring the site and will be responsible for the terms and conditions of the OOC being followed; it was suggested that this is how other commissions do it.
The Commission stated that their intention now is to take the restoration plan to the consultant; get the funds from Mr. Levkoff to cover the consultant and then the Commission will work with New England Environmental. Once the Commission has a schedule from New England Environmental the Commission will inform the applicant and we’ll go from there. The Commission was asked about a continuation date, which was tentatively set for April 27th at 6pm.
Lang - NOI 230-0252– 19 Point Rd. - reconfigure an existing seasonal dock, replace existing steps to the dock, build a stairway for kayak entry, reconstruct patio and landscape property (R. Andrus is the project manager)
Tim Lovett recused himself due to a conflict of interest. Shannon Boomsma, representative for the Lang’s was present to review the project. The state’s only comments were that a Chapter 91 license was needed and to review the buffer zone sections of the WPA. A motion was made to approve this project as submitted. The motion was seconded and approved unanimously.
For Discussion:
1. Mail was reviewed.
2. Minutes from 3.9.09 were approved as written.
3. Esther Heffernan of 22 Mt Hunger Estates submitted a request for a Certificate of Compliance for SMA06-13. A site visit will be made by D. Dempsey.
4. The enforcement order issued to Kern will be addressed at the May meeting. The applicant will be hiring a wetlands consultant and will come to the May meeting with a wetlands delineation and restoration plan for a “temporary” driveway that was put in, in a buffer zone without filing with the Con Comm.
5. The Commission talked about sending a letter to Shaun Tucker about his presentation last month to let him know that the informal meeting last week was in no way an approval of the project and they will need to file with the Conservation Commission before any gravel is hauled in or out of the area or before any work is performed in the resource area.
Meeting adjourned at 10:15pm
Submitted by: Melissa Noe, Inter-Departmental Secretary
cc: Conservation Commission Board Members
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